I. Introduction

Under the Canadian Constitution Act, personal property is the exclusive jurisdiction of the provincial legislatures.[1] The development and implementation of animal welfare laws concerning the private possession of animals in Canada is therefore within the jurisdiction of the government of each province and territory. The Parliament of Canada has jurisdiction over all matters relating to the regulation of trade and commerce and thus it is competent only in matters regarding the commercial trade of animals.[2]

Canada is a member of the Convention on International Trade in Endangered Species (CITES), the international treaty which regulates the international trade of endangered and threatened species of animals.[3]Environment Canada (EC) is the federal government department responsible for implementing CITES. EC regulates the international trade of CITES-listed species through the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA).[4] However, some provinces and territories impose stricter legislation.[5]

In addition to provincial legislation for the private possession of animals, many municipalities have bylaws to control exotic animal ownership. The problem, however, is that there is no standard bylaw among the various cities as to how to define “exotic animal” or how to deal with the many exceptions to ownership restrictions such as for universities, labs, animal school-related displays, etc.[6]

II. Federal Protection of Big Cats

There are two main types of big cats that are native to Canada: the cougar (Puma concolor) and the lynx (Lynx canadensis, Lynx rufus).[7] Under the federally enacted Species at Risk Act (SARA)[8] the cougar has been designated as endangered since 1978.[9] As of May 2011, the lynx was designated “not at risk.” The purpose of this Act is to provide special legal protection for Canadian at-risk wildlife species and ecosystems. Since the lynx is not considered to be a species at risk under SARA it does not have any special protection under the Act.[10] The cougar, however, is listed as endangered and therefore individuals are generally prohibited from possessing cougars.[11]

The majority of big cats are on the CITES endangered species list. In Canada, importers of these species are subject to specific import requirements such as permits, licenses, and supporting documents.[12]

Lastly, the Criminal Code of Canada prohibits anyone from “wilfully causing animals to suffer from neglect, pain or injury.”[13]Thus, cruelty to big cats would be an indictable offence and the person would be “liable to imprisonment for a term of not more than five years” or on summary conviction “liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.”[14]Provisions on animal cruelty in the Criminal Code are enforced by police services, provincial and territorial Societies for the Prevention of Cruelty to Animals (SPCA), and/or provincial and territorial ministries of agriculture.[15]

III. Keeping Exotic Species in Private Homes

The regulation of the keeping of exotic big cats (i.e., big cats that are not native to Canada) falls under the specific provincial laws governing the possession of exotic species. The Canadian Society for the Prevention of Cruelty to Animals (SPCA) is an animal welfare organization in Canada that seeks to prevent cruelty to animals. Each province has a separate SPCA that is mandated to enforce each jurisdiction’s relevant animal legislation.[16] The inspectors of the SPCA respond to all complaints of animal cruelty and neglect. In all provinces the SPCA is responsible for the application and enforcement of both the Criminal Code provisions on animal cruelty and the specific legislation enacted with regard to exotic wildlife.[17]

All provinces besides Ontario either require a permit to own exotic species or completely ban them as pets; however, zoos are often exempt from this restriction. This also varies from province to province. For example, Alberta and Prince Edward Island (PEI) only ban the private possession of animals considered “dangerous.” Quebec and Saskatchewan specify which species do and do not require permits.[18] The enacted legislation on the possession of exotic animals is analyzed in more detail below with regards to the provinces of British Columbia, Quebec and Ontario.

A. British Columbia

The province of British Columbia took the lead in preventing the sale and ownership of exotic species by promulgating the Controlled Alien Species Regulation under the BC Wildlife Act on March 17, 2009.[19] The Regulation, which is based on recommendations submitted by the BC SPCA to the BC Ministry of the Environment in 2007, legally designates over 1,000 previously unregulated non-native species as Controlled Alien Species (CAS). This list was based solely on potential public safety issues and not animal welfare or environmental concerns.[20] Section 3 of the Controlled Alien Species Regulation specifies that a person must be in possession of a permit if he or she wishes to possess a big cat.

Species on the CAS list can no longer be bought, sold, bred, or kept in BC for private ownership. Under Schedule I of the Regulation, all species of the subfamily Pantherinae (defined as “big cats such as lions, tigers and panthers”) are listed as CAS. According to the Regulation, individuals are prohibited from possessing or breeding such animals unless the animal was in BC prior to March 16, 2009 (the date of the adoption of the Regulation). Individuals who had one of these animals before March 16, 2009, must apply for a permit and comply with care standards in order to keep the animal for the rest of its life. A permit is required in order to own all animals on this list.[21] Different permits exist for pet owners, researchers, and the entertainment industry.[22] Over time, the adoption of the Regulation will lead to the phasing out of private possession of such exotic animals as tigers, lions, caimans, and primates in BC.[23]

Under section 6 of this Regulation, any person in contravention of the Regulation commits an offense and is liable to the fines and penalties outlined in the BC Wildlife Act. Section 84(2) of the Wildlife Act specifies that on first conviction, an individual in contravention of the Act is liable to a fine of not more than Can$250,000 and not less than Can$2,500 (approximately US$244,800 to US$2,400), to a term of imprisonment not exceeding two years, or to both.[24]

B. Quebec

The Regulation Respecting Animals in Captivity[25] is the main piece of Quebec legislation that applies to the keeping of animals in captivity, the capture of animals for the purpose of keeping them in captivity and, where applicable, the disposal of animals. This Act provides general obligations for the keeping of animals in captivity and the standard of care that they need. In the Act, certain species of animals are exempt from the requirement of obtaining a license prior to acquiring the animals. However, no big cats are listed as an exception and therefore any individual wishing to privately own a big cat in Quebec must obtain a license.

Division II of the Regulation outlines the basic obligations of any person who keeps an animal in captivity, such as providing the animal with drinking water and preventing the unnecessary suffering of the animal. Any person who contravenes one of these sections commits an offense.[26]

The Animal Health Protection Act (generally known by its statutory chapter designation, P-42)[27] imposes basic standards of care for all animals. Division IV of the Act deals specifically with the “Safety and Welfare of Animals kept in captivity.”

In Quebec, inspectors of the SPCA are responsible for enforcing provincial legislation regarding the Animal Health Protection Act[28] and the provisions of the Criminal Code of Canada regarding animal cruelty.

C. Ontario

The province of Ontario is the only province currently lacking any form of provincial legislation regarding private exotic animal ownership. The 2003 Ontario Municipal Act[29] did, however, give municipalities the power to enact exotic animal bylaws, which are not standardized and vary between municipalities.

In Ontario, the main piece of legislation concerning wild animals is the Fish and Wildlife Conservation Act.[30] This Act regulates which animals may and may not be taken into captivity and under which conditions this may occur. Section 40 of the Act provides that live game wildlife or live specially protected wildlife shall not be kept in captivity except under the authority of a license and in accordance with the regulations. Neither the Canadian lynx nor the cougar appear on the schedule under live game wildlife or live specially protected wildlife.

In regards to exotic wildlife, Ontario is in the process of trying to pass a private member’s bill to oversee exotic wildlife in captivity—Bill 125.[31] Until this Bill is passed, the only provincial authority is the Ontario Society for the Prevention of Cruelty to Animals (OSPCA), which intervenes only in animal cruelty investigations.[32]

The Ontario Society for the Prevention of Cruelty to Animals Act[33] outlines the basic standards of care for all animals. The Ontario SPCA supervises the enforcement of the Act. Inspectors and agents of the SPCA are given the powers of a police officer for the enforcement of the Act.[34]

Under the Ontario SPCA Act, any person who is in contravention of certain sections of the Act is punishable “on conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than 30 days, or to both”.[35]

IV. Commercial Zoological Institutions

As of April 1, 2010, all commercial zoos in British Columbia are required to have permits for the possession, breeding, or shipping/transporting of a Controlled Alien Species. Permits must also be obtained, to bring new Controlled Alien Species into British Columbia.[36]

Commercial zoos that hold a valid permit issued by the Ministry of Environment will be able to possess CAS, ship and transport CAS, as well as breed CAS (with an approved collection management plan).[37]

B. Quebec

The Regulation Respecting Animals in Captivity[38] indicates the requirement for a zoological garden to obtain a license. Section 20 of the regulation specifies that the holder of a zoological garden license “authorizes its holder to keep animals of native or exotic species in captivity for conservation, research, educational, exhibition and recreational purposes. It also authorizes its holder to capture an animal of a native species listed in Schedule I for the purpose of keeping it in captivity.” Section 21 of the regulation specifies the specific requirements necessary to obtain a zoological license.

C. Ontario

The Ontario Fish and Wildlife Conservation Act (1997)[39] is an important piece of legislation regulating which animals native to Canada may and may not be kept in captivity and the conditions under which this may occur. All species in this Act are “Scheduled Wildlife Species.” Among the circumstances for which these species may be kept in captivity is that of a licensed zoo that keeps scheduled wildlife for educational and public display purposes. As part of the Fish and Wildlife Conservation Act, Ontario Regulation 668/98 – Wildlife in Captivity specifically regulates zoos. As a result of this Regulation any person who owns or operates a zoo must apply to the Minister of Natural Resources (MNR) for a license.[40] However, as noted above, no specific legislation addressing exotic animals has been enacted in the Province of Ontario.[41]